FT 

MEADE 

HE 2757 
1912 
. D2 

Copy 2 


Copy 2 







'••** A A A. ^ 

** 0° .‘AA °o A *• A% ^ 

-y". _ v „ xv\\\W ^ «N + &t1[//?2- - V 


^ <A 
o V 




•w 


* A 

■» . * 

* <\ 

t$T o " o „ ^ A^ . 

0 ° * C c^v>_. o < 4 * A 

v>* A *• 

o V 


„ >V° ^ "ISC?* 0 V 

v®*y v^-v 

<y .VVL'* v N * * * °* c\ -»••' 




% A* * 

VV 

*^T*' a ^ *'?. a" a* * AA*' a '°* a 

.<£*’ t » * *<i> (A 0"O *^Q A . I ' » „ <A 

„A sLjmZ' C *c^vl' o j* Sae/r??^' v C *cj 

'*bt- i /j^SPllA W , ov k .'ilfllA ^o 4 A 





\ 0 >7\ 

> v <K 

+ p» A 

’ rv ^ ^*.* 0 

A 0 <A * ® " 0 * 

/ *>;•', ^ v . 

y * 'TVA/fc . A V 

: srv 





4 O 

-0? y<^ 

A o - <i 3#^ M V 0 

V °*. * • -' • f 0 

* • o_ c> A v % 


.0 ^ * j\ O. \- 

* t*. ° nT - ^ 

i. j 'VXsVj * y? ► O * 

^ * « * » 0 


V* Ap 

* A 'A 

4 a v & 

A 'o . * * ,0 V O 

■ A .•■_•. 

^ ♦ 

> * 4 ' 

H o. 

* 



^ o .a/ »<. 

1 ' N v 

• <y A, * * 

A o * 

V” *’•<>, 





♦ / A J - 

* V <*v ^ j\ * " ^ A , 

f o*. 

^ 0^ 

* ' ' ’ * y . * o „0* °<U ' 

*’'"*■ *+\. aP > L!o L^ ^ V H Y * °ir O 



















t 


mb 


\ 




< 





* s ^ - 



W 


o V 


> >P ^ ° <a5 x° ^ 

+ r. ^ ^^U\VsN^ ' k * «- < ^yy//l)<tf\ n 7 + 

+ *•-’•’ f° ^ '*»»<.’■ <J^ °o *OT\-’ ^ ^ '» 

.V%#V- v y .ySfcV. ■», a v *■ -* J ' 



0 


y 


• • 


*-*■<>« 



o V 



o N 




o V 


V * ^ 

V'V 

: y % 

■ K > ^ <? ^ 

,-Z .-U*- ^ ,<V ««V. c> 

*. /E\\l//y>r> + *p * K 

r A* a> 0 


X* 


;> ,s 






O ♦ #L 




•*• o 


\>*\ 


o V 


* ^ 
V* o' 


0 <j5 bfv 

«* ^ 

<vV o . * 


>° ^ 

♦ r\ **£- * 

% r\ J + "W 0 • <L y C> 

V • ' 1 ’f° ^ * » * 0 o 

V *'•** c> ,o v s’V> b> V * f *°- O 

.V *'*&#*:* ^ . v ^iV. *, ^ 

O 


* / ■ 


v £* aX 

v* v 


o vT* (* 

vO * 




* yb 

* ,G* \ ♦, 77 -.‘- A 

n' 't'o a 


v-> 


t a 


\>* 

o V 


■ 

> o o -W«y 0 

y <±» 1 ^ 

+ < * c> jy 

• ^-v * 

V <?> * 


\0 vV, ° 

v*^**y 

\> V n t • °^ C> 

^ <». ^ .V 


» I T 


o 


0 K 1 


<y , s v^ V 


mniir 


* '"C>k • 

4 r<y ^ * 


. v** 

y <<* ° 






t • » 


\>* « 


C 


0 V o ° " ° -T 


<b 


\ 




n . 


o V 


o y 


o 


9 i *\ 


9 ) 


% ,Z 


» C 

-T S 


.* ^ - 
^ K > * 

* <XS O 

-•••• y °4. 

V .'••>- cv 

.-^ ,'aV/o tf. 

W 4 W/”, b< 


.f 


<■ 


* c.^ yv 

* ,v ^ 

* /V W' 






*>• *”^ 


o V 


^ ^P v 

V* 0 X 


^ ^ \ZZMZ' > ^ ^ °-o 

y o a 'v '> t w‘. > y o . 

^ *v *■•’* f° y * ° ■ ” y °^. • 

f. ’ * ®, c> s s ’'/> b> v •» T * °' cv 

*■ St • 'r „ <* .-Ok *P 


» , T 


0 


°o ,& 


■J'S 


^ . 


y 


0 


° • * 

t». - 
* 

. (y 

' y - 

•% *"" 0 ’ ,y 


0 o_ " * ». s 


0 y 0 0 N ° * 


0 


V* 


b y 


o. ♦ 


o N o 


^’.oL'-v v' ^ y * o ' _c v y;' ^* v'-v y v F *> f • °- c\ 

.''*$£>*. ^ V y ^ ..* kV%t?A,v t#. 






9 l 



































MEMORANDUM 

ON JURISDICTION OF COURTS 

WITH RESPECT TO ORDERS OF THE 

INTERSTATE COMMERCE COMMISSION 


BY 

JOHN B. DAISH, A. B., LLM. 

t< 


OUTLINE 

Tlie Interstate Commerce Commission is an ad¬ 
ministrative body to which has been confided cer¬ 
tain powers with respect to interstate commerce; 
its duties are judicial and quasi-judicial, legisla¬ 
tive, ministerial and administrative. 

In performing these duties the Commission 
makes and enters certain orders and requirements; 
these usually follow hearings either upon com¬ 
plaint or in general investigations, which are by 
law authorized. Orders in form are either: ( a ) 
those granting relief, requiring a carrier to cease 
and desist from charging a particular rate or con¬ 
tinuing to enforce a particular practice and pre- 
la 


TA 




2 


»> v 

scribing another and less rate or different practice; 
or (ft) one denying relief, as dismissing a formal 
complaint in which has been alleged the unreason¬ 
ableness of a rate or practice. 

Prior to the act of June 29, 1906, affirmative 
orders of the Commission were enforceable only in 
a proceeding in the United States courts, brought 
by the Commission or a party injured against the 
carriers. This procedure is still in the statute, but 
is not usually invoked, because by the act men¬ 
tioned the orders and requirements were made self¬ 
executing, both in terms (it being provided within 
what time they might be made effective) and the 
failure to obey them probably subjects the offend¬ 
ing official to heavy penalties. 

Appreciating that the Commission might err and 
that tlffi carriers are entitled under the Constitu¬ 
tion to an exercise of the Federal judicial power 
the act of 1906 provided for the venue of suits 
brought “to enjoin, set aside, annul, or suspend 
any order or requirement of the Commission” and 
in such courts as the venue fixed “jurisdiction to 
hear and determine such suits is hereby vested.” 

By the act of 1910, this jurisdiction, along with 
three other classes of cases, was transferred to the 
Commerce Court, created by the act. 

In the Commerce Court came to be filed cases to 
enjoin, set aside, annul, and suspend orders of the 
Commission, ($) which denied relief and dismissed 
the complaint, and (ft) which although granting 
relief, did not give the complainant the measure of 


. Gfr 

A 

r, 

1- ■ • jS >3 



3 



relief to which he thought himself entitled. That 
the Commerce Court has no jurisdiction of contro¬ 
versies of these classes of cases was determined in 
Procter and Gamble vs. U. S.; opinion Supreme 
Court, June 7, 1912. 

While Congress may within recognized limits 
make the findings of fact and determinations of an 
administrative official final, it has usually provided 
by legislation for some measure of review, particu¬ 
larly if any of the duties are judicial or quasi-judi¬ 
cial. As to the Commission, its decisions against a 
complaining shipper are now final, hut if against a 
respondent carrier are proper subjects of judicial 
review. There is therefore a kind of presumption 
that when deciding against a shipper the Commis¬ 
sion is right and when deciding against a carrier it 
is wrong. 

Manifestly in fairness jurisdiction should be 
given to the courts to entertain petitions by ship¬ 
pers who have been denied relief by the Commis¬ 
sion. In order, however, to give to shippers a full, 
adequate and complete remedy the power of courts 
in such cases needs be different than when their 
jurisdiction is invoked by one against whom an 
affirmative order has been made. The power only 
“to enjoin, set aside, annul, and suspend” an order 
would be inadequate, for after the exercise of such 
power the shipper would be exactly where he was 
when he applied to the Commission. Within the 
proper exercise of the judicial power in matters of 
this nature the courts should have such authority 


4 


as is fully adequate to meet the existing necessities 
and requirements. 

In a very similar case, the Congress has provided 
that when one is aggrieved by the decision of an 
administrative official in the exercise of judicial 
and quasi-judicial duties, he may invoke the power 
of a designated court, which court can revise the 
decision of the administrative officer appealed from 
and which returns to the official a certificate of its 
proceedings and decision to govern the further pro¬ 
ceedings in the case. The court marks out the law 
as applied to the facts of a particular case, in so 
far as judicial and quasi-judicial determination is 
necessary; beyond that (and mandamus to compel 
the performance of a ministerial duty) he is free 
from control by the courts. The act providing the 
procedure set forth was enacted in 1870 and has 
been held constitutional by the Supreme Court. 

If similar powers be conferred on courts respect¬ 
ing negative orders of the Interstate Commerce 
Commission they would, it is respectfully sub¬ 
mitted, meet the present demands and necessities. 


1. The Nature of the Interstate Commerce Com¬ 
mission. 

Under the Act to Regulate Commerce, and in¬ 
dependent of certain duties and powers conferred 
by other acts (such as safety appliance acts, hours 
of service acts, etc.), the Interstate Commerce 
Commission is beyond doubt an administrative 
body to which has been confided certain power, au- 



5 


thority and jurisdiction over and in respect to in¬ 
terstate commerce and the carriers and instrumen¬ 
talities engaged in the transportation of property 
therein. 

It was created by the act of February 4, 1887 
(24 Stat. L., 379). This act has been amended 
from time to time, the powers of the Commission 
have been enlarged and its duties have been in¬ 
creased, both in number and importance; particu¬ 
larly was this accomplished by the amendments of 
June 29,1906, the so-called Hepburn Law (34 Stat. 
L., 584). 

Originally the Commission was subordinate to 
one of the Executive Departments, reporting to the 
Secretary of the Interior. After being so attached 
for two years, Congress by law required that the 
Commission report direct to it. Since 1889 (25 
Stat. L., 855), it has not been attached to any of 
the three grand departments of the Government. 

The courts are not wholly harmonious in stating 
the legal status of the Commission and the Commis¬ 
sion has never seen fit fully to describe itself. It 
is, however, a body corporate with legal capacity to 
be a party plaintiff or defendant in the Federal 
courts (Texas and Pacific R. Co. vs. I. C. C., 162 
U. S., 197). 

Prior to the amendment to the act in 1906 the 
Commission was called “an administrative board” 
(C., N. O. & T. P. Ry. vs. I. C. C., 162 U. S., 184, 
196) ; and “an administrative body” (I. C. C. vs. 
C., N. O. & T. P. Ry., 167 U. S., 479, 510). 


“It [the Commission] is neither a Federal 
court under the Constitution nor does it ex¬ 
ercise judicial powers nor do its conclusions 
possess the efficacy of judicial proceedings.” 

K. & I. B. Co. vs. L. & N. R. Co., 37 
Fed., 567. 


Prior to the amendment of 1906 it was said to 
exercise quasi-judicial powers (I. C. C. vs. C., N. 0. 
& T. P. Ry. Co., 76 Fed., 183; I. C. C. vs. C., N. O. 
& T. P. R. Co., 64 Fed., 981; Texas & Pacific Ry. vs. 
I. G. C., 162 U. S., 197; I. C. C. vs. C., 1ST. O. & T. P. 
R. R. Co., 167 IT. S., 479; I. C. C. vs. L. & N. R. Co., 
73 Fed., 409). 

& N. R. Co., 73 Fed., 409). 

Since the Hepburn Law of 1906, by which the 
powers of the Commission were increased, the 
Commission has said: 

“There is an analogy between the juris¬ 
diction of the Commission and that of a 
court of equity. ’ ’ 

R. Coni. vs. H. V. R, Co., 12 I. C. C„ 
398. 


And it has also referred to itself as follows: 

“While its procedure is to some extent 
judicial in nature, the Commission is essen¬ 
tially an administrative body.” 

M. & K. Shippers’ Ass’n vs. M., K. & 

10 TOC A«Q AQA 


7 


2. The Duties of the Commission and a Consid¬ 
eration of the Nature Thereof. 

The duties which the Commission is called upon 
to perform are many and varied. To enumerate 
them would serve no useful purpose at this time; 
for the present it will suffice to point out the fact 
that the duties are properly divisible into several 
classes according to their nature. 

Certain duties are judicial or quasi-judicial, as 
in determining whether or not a rate is reasonable; 
others are legislative, as in prescribing a rate for 
the future. j 

“It is one thing to inquire whether the 
rates which have been charged and collected 
are reasonable—that is a judicial act; but an 
entirely different thing to prescribe rates 
which shall be charged in the future—that is 
a legislative act. C.,M. & St. P. R.us. Minne¬ 
sota, 134 U. S., 418, 458; Reagan vs. Farm¬ 
ers’ L. & T. Co., 154 U. S., 362, 397; St. L. & 
S. F. R. us. Gill, 156 U. S., 649, 663; C., N. O. 
& T. P. R. Co. us. I. C. C., 162 U. S., 197, 216; 
Munn vs. Illinois, 94 U. S., 113, 114; Mem¬ 
phis & L. R. R. Co. us. Sou. Exp. Co., 117 
U. S., 1;” I. C. C. us. C., N. O. & T. P. R. Co., 
167 U. S., 479, 499. 

Other duties, particularly those relating to the 
interior management of the Commission, are 
clearly administrative. 

Still others are in part of one class and in part 
another. The power and duty prescribed by sec¬ 
tion 12 to execute and enforce the provisions of the 


8 


act were considered by the Supreme Court in I. C. 
C. vs. 0., N. O. & T. P. P. Co., 167 U. S., 479, 501: 

“The power given is the power to execute 
and enforce, not to legislate. The power 
given is partly judicial, partly executive and 
administrative, but not legislative.” 

3. The Orders of the Interstate Commerce Com¬ 
mission. 

In addition to the orders of the Commission re¬ 
specting the keeping of accounts, the form of re¬ 
ports of carriers and general orders of like kind, 
the Commission makes and enters orders in formal 
cases; these orders close (subject to petition for re¬ 
hearing) the controversy and proceedings before 
the Commission and are analogous to final decrees 
in equity courts. 

In form orders are ( a ) affirmative, as those 
granting relief by requiring carriers to cease and 
desist from charging unreasonable rates and fol¬ 
lowing )discriminatory practices, and prescribing 
reasonable rates and non-discriminatory practices; 
or (5) denying relief, as those dismissing the com¬ 
plaint of the shipper. Orders to accomplish other 
purposes than those stated necessarily fall within 
the above classification. 

4. How Orders Were and Are Enforceable. 

Prior to the act of June 29, 1906, the orders of 
the Commission, if affirmative in their nature, were 


9 

enforceable in the Federal courts by a bill by the 
Commission or by any party injured by the failure 
of the carrier to obey the order. This procedure is 
still permissible in the Commerce Court, and in 
addition to the Commission and any party injured, 
the United States may by the Attorney General file 
an appropriate bill. 

The act of June 29, 1906 (34 Stat. L., 584), made 
the orders of the Commission self-executing or 
self-enforcing. The failure, neglect, or refusal to 
obey them within the time limit thereof was made 
punishable by heavy penalties. A method for an¬ 
nulling them, inasmuch as the Commission was not 
a court, was under the Constitution necessary. He 
against whom the order ran was entitled to his day 
in court. 

By the act of June 30, 1906 (34 Stat. L., 584), 
was fixed the venue of circuit courts of the United 
States in 44 suits to enjoin, set aside, annul or sus¬ 
pend any order or requirement” of the Commission 
and jurisdiction 4 4 to hear and determine such suits 
is hereby vested in such courts.” 

This jurisdiction (and jurisdiction over certain 
other classes of cases) was transferred to the Com¬ 
merce Court by the act of June 18,1910, which was 
subsequently re-enacted as part of the Judicial 
Code (act, March 3, 1911). 


2a 


10 


5. The Power of Courts to Enjoin, Set Aside > 
Annul, and Suspend Orders of the Commission. 

When the act of 1906 was before Congress there 
was a thorough appreciation of the fact that the 
carriers had a right to a judicial review of the 
orders of the Commission; whether the power of 
the courts should include “broad 7 ’ review or “nar¬ 
row” review was most freely debated, particularly 
in the Senate. The question was not, however, spe¬ 
cifically decided, for to the circuit courts was given 
“jurisdiction to hear and determine such suits,” 
i. e., suits to enjoin, set aside, annul or suspend any 
order or requirement of the Commission. 

It has, therefore, fallen to the Supreme Court to 
delineate the limitations within which the courts 
may act. Reviewing previous cases which had been 
before it for decision, the Supreme Court in Inter¬ 
state Commerce Commission vs. Union Pacific R. 
Co. (222 U. S., 541, 547), said: 

“There has been no attempt to make an 
exhaustive statement of the principle in¬ 
volved, but in cases thus far decided, it has 
been settled that the orders of the Commis¬ 
sion are final unless (1) beyond the power 
which it could constitutionally exercise; or, 
(2) beyond its statutory power; or (3) 
based upon a mistake of law. But questions 
of fact may be involved in the determination 
of questions of law, so that an order, regular 
on its face, may be set aside if it appears 
that (4) the rate is so low as to be confisca¬ 
tory and in violation of the constitutional 


11 


prohibition against taking property without 
due process of law; or (5) if the Commission 
acted so arbitrarily and unjustly as to fix 
rates contrary to evidence, or without evi¬ 
dence to support it; or (6) if the authority 
therein involved has been exercised in such 
an unreasonable manner as to cause it to be 
within the elementary rule that the sub¬ 
stance, and not the shadow, determines the 
validity of the exercise of the power.’’ 


6. The Courts Have No Jurisdiction Over Nega¬ 
tive Orders of the Commission. 

In the course of the many decisions of the Com¬ 
mission complaining shippers who had been denied 
relief became aggrieved and being of opinion that 
the Commission had erred and denied substantial 
rights filed petitions in the Commerce Court for a 
judicial decision of the controversy and to enjoin, 
set aside, annul, and suspend the negative orders of 
the Commission. The case first determined was 
Procter and Gamble vs. United States, involving 
the right of carriers to charge demurrage on pri¬ 
vate cars while on private tracks. The Commission 
had held that the carriers had the right. On peti¬ 
tion to the Commerce Court, the United States 
moved to dismiss on jurisdictional grounds. That 
court held it had jurisdiction but sustained the 
right of the carriers to assess demurrage under the 
circumstances stated, thereby agreeing with the 
Commission. 

The case was appealed to the Supreme Court, 


12 


which held that the Commerce Court had no juris¬ 
diction of cases in which the Commission had dis¬ 
missed the complaint of a shipper. The Chief Jus- 
tice, speaking for the court, after quoting the 
power conferred upon the Commerce Court over 

“Cases brought to enjoin, annul, or sus¬ 
pend in whole or in part any order of the 
Interstate Commerce Commission,” 

said: 


i 1 Giving to these words their natural sig¬ 
nificance we think it follows that they confer 
jurisdiction only to entertain complaints as 
to affirmative orders of the Commission; 
that is, they give the court the right to take 
cognizance when properly made of com¬ 
plaints concerning the legality of orders, 
rendered by the Commission and confer 
power to relieve parties in whole or in part 
from the duty of obedience to orders which 
are found to be illegal. ’ ’ 


It therefore follows that in no case in which the 
Commission has dismissed a complaint, even by a 
divided Commission, can the complaining shipper 
go farther; whatever errors may have been made 
by the Commission, nevertheless the shipper is 
thereafter remediless. 

Under the doctrine laid down in the Procter and 
Gamble case the Supreme Court dismissed the ap¬ 
peal in Hooker et al. vs. Knapp et al. (involving the 
reasonableness of rates from Cincinnati to Chat¬ 
tanooga) and The Eagle White Lead Co. et al. vs. 


13 


Interstate Commerce Commission. By reason of 
the same decision the Commerce Court of its own 
motion dismissed the following cases for want of 
jurisdiction, or they were subject to have been so 
dismissed: 

Anaconda Copper Mining Co. et al. vs. United 
States. 

Crane Iron Works vs. United States. 

O ’Gara Coal Co. et al. vs. United States et al. 

Cattle Raisers’ Association of Texas et al. vs. 
United States. 

Chamber of Commerce of City of Augusta, Ga., 
vs. United States and Interstate Commerce Com¬ 
mission. 

International Salt Co. of Illinois et al. vs. United 
States and Interstate Commerce Commission. 

Louisiana & Pacific Ry. Co. et al. vs. Interstate 
Commerce Commission, United States, et al. 

Woodworth & Louisiana Central Ry. Co. et al. 
vs. Interstate Commerce Commission, United 
States, et al. 

Sibley, Lake Bisteneau & Southern Ry. Co. vs. 
United States and Interstate Commerce Commis¬ 
sion. 

The twelve cases indicate the great importance 
of having a review of the decisions of the Commis¬ 
sion, for they constitute one-sixth of all the cases 
filed in or transferred to the Commerce Court, 
The demand is not single and stray but great and 
broadspread. 


14 


7. The Right to Invoke the Federal Judicial 
Power Should Be Mutual. 

There would seem to be no argument against 
conferring upon the courts jurisdiction to hear and 
determine controversies which have been decided 
adversely to the complaining shipper. Since the 
Abeline case (204 U. S., 426) he must initiate his 
proceeding (if he complains of certain matters) 
before the Interstate Commerce Commission, for 
its jurisdiction and power in particular controver¬ 
sies is original and exclusive. 

The denial of the same right of review to the 
shipper as is accorded the carrier is beyond doubt 
a denial of that equality of the law which is funda¬ 
mental in the Constitution, even if (which seems 
likely) the shipper is not denied due process of law. 

Our jurisprudence has zealously guarded the 
right of the individual and particularly against er¬ 
roneous and arbitrary action by administrative and 
quasi-judicial officials. If a committing magistrate 
act erroneously one has habeas corpus; if an admin¬ 
istrative official fail to perform a ministerial act 
mandamus lies, and in this behalf the courts have 
broadened rather than narrowed the remedy. Not 
only have the courts appreciated and kept inviolate 
the rights of the individual, but Congress itself has 
usually protected by appropriate legislation his 
rights. Instance the applicant for a patent; if the 
individual be denied one, he has from early days 
been permitted a review and revision of the decis¬ 
ion of the Commissioner of Patents. Early in our * 


15 


history he had the right to appeal to a board; more 
recently and since 1870, he may invoke the judicial 
power by an appeal thereto. (5 Stat. L., 117; R. S. 
IT. S, secs. 4906 et seq.; 27 Stat. L., 434, ch. 74.) 


8. Powers Necessary to be Conferred in Respect 
to Negative Orders to Give Adequate Relief. 

It is manifest that if to the courts be given only 
the power to enjoin, set aside, annul, and suspend 
negative orders of the Commission, the power will 
not be commensurate with the relief to which one 
is in justice entitled. The setting aside of or 
similar action regarding a negative order would 
leave the petitioner before the court practically 
where he was as complainant before the Commis¬ 
sion. The authority of the courts must be suffi¬ 
ciently broad and comprehensive to give adequate 
relief. 

There are of course matters which cannot prop¬ 
erly be placed within and subject to the judicial 
power; but matters judicial or qua si-judicial in 
their nature are proper subjects for judicial de¬ 
termination (Murray vs. Hoboken L. & I. Co., 18 
How., 284). 

In its administrative functions the Commission 
is not subject to control (I. C. C. vs. Humboldt 
S. S. Co., 224 U. S., 474). In its legislative func¬ 
tions it should be as subject to revision by the 
courts at the instance of shippers as at the in¬ 
stance of carriers. In its judicial and quasi- 


16 


judicial functions it may constitutionally be made 
subject to the judicial power (U. S. ex rel. Ber- 
nardin vs. Duell, 172 U. S., 576). 

To give adequate relief the courts must be en¬ 
dowed, not with purely revising power, for prob¬ 
ably such power would vitiate the grant, but with 
power to mark out the law as applied to particular 
facts and to certify the law in the case to the Com¬ 
mission for its guidance in further proceedings 
therein. Such is the power and procedure in pat¬ 
ent appeals, which has stood the test of the Con¬ 
stitution (U. S. ex rel . Bernardin vs. Buell, 172 
U. S., 576). 

The analogy between the two situations is com¬ 
plete. Each,—the office of the Commissioner of 
Patents and the Interstate Commerce Commis¬ 
sion,—are administrative in their nature; each 
performs certain ministerial and judicial or quasi¬ 
judicial functions. To secure justice through the 
exercise of the judicial power one may have an 
appeal to the courts for the purpose of securing 
a patent or -determining priority in an interfer¬ 
ence case. Appeal to the courts or right.of judicial 
review is unfortunately now denied one who has 
failed for any reason to make a case before the 
Interstate Commerce Commission. 

It may be said that if to the courts be given the 
power of review of negative orders carriers, as 
well as shippers, may in such cases appeal to the 
courts. This is true, for carriers may under the 
act seek relief from the Commission; but if the 
Commission is wrong, ought not any one injured 


17 


by the wrong be entitled to have the wrong 
righted? If, again, it be said (as it has been) that 
the Commission is the shippers 7 friend, and one 
can rely that every intendment in favor of the 
shipper will be given, it can properly be replied 
that Commission is not supposed to be & biased or 
prejudiced body, and that the number of cases in 
the Commerce Court heretofore filed by shippers 
shows that the Commission does not always decide 
with the shippers. 

9. What Court Should be Invested with Power 
in the Premises . 

As transportation law is technical, as the facts 
are complex, as the domain of investigation is 
broad, and as unanimity and promptness of de¬ 
cision is desirable, it is submitted that the power 
to be conferred should be conferred upon the Com¬ 
merce Court. No one will deny that these trans¬ 
portation questions are “ matters involving public 
rights which may be [and usually are] presented 
in such form that the judicial power is capable of 
acting upon them and which are susceptible of ju¬ 
dicial interpretation. 7 7 And no one with even 
slight familiarity with the subject will deny the 
advantage of the judgment of a trained body of 
skilled judges, expert in all the intricacies of this 
special branch of the law. 

JOHN B. DAISH. 

Washington, July 9, 1912. 


[ 17855 ] 









*• . 







































i. 
































f 




ff 

































584 










































C * 7 \ v ^ 

V ? ^ * 

° - 0 f 0 ^ " 1 A 

♦ ^ a 0 v ***°' ^ V > 

^tr <* "K^fA C o ^ ^ * 

v^V \tMM?l* **V 

^ ^ « 


^° F 




A « 

^O V s * 0 


^ * 



% "V <* * 

* A 




i • o 


. - 0 

* < CL 

♦ bv ^ * 

<i> * * 1 <y °lp D “ 0 a® 

> V **V>L'* <5\. .0^ 

**. ^ ,** ;‘**V- ^ <# •• 


*4 * 

'TL A 0 
o V 


* T. 

- A 


0 


^ CL 

L* ^ 



o * k 


<A S ^ °. 

^•• % ^ , % 
p ,0' 

^ <J < J^W/y^ * vy V ' 
la ~x st, « ^o V . 

rs 



\0 v*. 

' ' ^ 

...-• <0° ^ 

“ v * °' *^ v N * lvl % 

*o <C> 4 <* 4 ^ 4 ^*> 

' - f' : l Wh\ **<* -rffoaost- 

<l.*'’ ^ < 

<> <\ "'TV** <G o '*».» - 5 

^ t c ® "tp ^0^ \ ^ 




* > « 
**CT 



** ^\ls§^ 0 9° ^ 

^ ’ ° " 0 ’ A u ^ * • ' ’ ’ ' A? °°^ ^ * a - ° ° A 0 ° ^ 

c\ < 9 V .*•<>- > \> c\ o v • «•«>* 

* jIM/Ifet «* ^ . ft -S . • ^ *> “ 



^ ^ - 
j'y * 


■.w.* ' 

° • ‘ 4 .A ' • * 5 ' .O' 

1 •L ,o> t « t */* o 




% 4? ' 


A , 

^ <y o 

o > 


^°' 7 L. ■* 

P 4- 



- ^A 


® 

* ^ V . -»> ^ 

<>• ' • • 4 A 

<P. o v 

^ 'P C 


0 


» » o 



- , 4- 4*- 

■■■'' ^ % '*•* 
^ C° t -‘"* °- 




* T. 

^ *P > 


,H 9 a 


/ ^ °x, '. 

^ ^'* ,T **" f° v ^ *••’• s v 1 

^ \ / .w*. ^ 

v l ■•!* ’ 

/• ^ ” rv O (///Vk/ywxr* ** \ V 1 ^. -» N^MIMIK^/ ft C \T* - //t 

&S J 3 L *?W^* ^ " 


9 



o 

« C 9 

^ o 


H o» 

L > ^ 



*b : 


<L. ’ ' .'. * <G 

,■£' .‘JA” ♦, tp , 0 V , . ‘ ' * . ^O 

^ -V « A 

-A q' 






£> N o 


s ^ o 





■^\ 


O . » 





p tt> ^ *' 

“ %<& • 

• ^ >. • 


^ o 



^ *' 


1° •*+. \ 



(b 4 

* A* 

. ^ , 0 ^ t *A*- ^O ^ 0 A° ^ <s> 

«a. 0. Act G ± ° . <" 'P 

“* 'P^ ^ *• A 



0 


4 O^ 

L> »A 


^rv a rr, * * ^ 



O v 


o N 0 


1+0 


o \ 0 vL 

s ❖ <#* * 

* 9 ~> «• 

0 O ^ * 



^ *7^ 

“’ ^A A 



$ , 


..* 4 ,G 



9' * v 


> -CL ^ 

•* ^ 

A 

^ V % s 5 • ’ ' 

•«• ^ A « v 

E®^. • 

C vP x 

vP, 


. L ' • ^ ^ o 


o 'o . * - A 


<* A 'L '•.?»,* >’ “•l «: 


H q 


■a.' ■A « 

l. ^ h 



A \- <V "'••*" aO 

A 0 0 w c ^ <P. n v . t I » 

•vA * c ^ 5 SXv *p* (-O t 

v^_ A +P, • 

^ 0 



o V 


i 0-7 W 



.h q 




















0 > * I^iy «> c- % 

A " ’ < V % ‘‘-o 



Vv^ 



* -* « „<b '-T* 

* .-«rs>"/ ^ % -3®K‘ v# •>’ 

°<. '° • • ' A <U ^ .p .o*- % 

O A , o * o _ “A , 

* O .1^ • ^ f 0 # * O 

** - \N << ^rsN\\\n x ^ * *y. v * 

; **o« -'il^*- ■*b^ : 

■" «5 °-* “SjtliS*’° 4° 

» + <j.r o ** 0 

^ <>-*•*> V , 

: :|Miy&'’, %<? • 

Cl*' ~*/\ O W/NSgW * aV-*^ J 

b ^ ..v/hswy* A v •$> 



0 • *•©-. 


^ ‘7^ ,* 

rO- « I 1 0,~ 


V ^ 


<» *<TV. • ‘ 'V ■* 

u% ^ V * 

^ ^ 7\. ^ A o 

0 > * 


4 




0 V> ^ o 
♦ -V *\ o 

“•** -V k <x ■•^•’ &■«• V'-... 

* -o .‘_^% % ,0* ,1^_P o o 

* ^ 0 ^ ,'i ^ 

\0 */* - * ^o. 

0 * cA "V O - 

a° V *».’• / o *■ o;o 0 . 0 - 

-V C\ < 0 ^ * V * ° * ' < \> A «. S • * , ^ _ y * 



4 °-^ 



' o 


V F <> ' 

o. ^ c 0 N 0 % 

■*» < M <i * *y w 

4-° ^ «-* -*<• - 

• r,o 'V ?*air*s a o - 

V 'k *' * v% Cl , 0 ^ 



A’lr* 

■» .-•> 0 

^ ClV ^ 


0 
,^o 



a\ r "V- ' • * 5 

6 ° “ ° * 

N <« <fvSN\\ ^ 



0 


> £9* 

rf> a '^ .v 

v % , s * * ' 



. _ r _ ^ ' ci^ * _ _ 

< & o N o „ (sV , I ' 9 , '^ 0 .$> o N a *<S> 

iV' ♦ r^N\ ^ *r f ^ t y^tn ■+ ,*ry » ^j>CVv <* ^ 

n - -p. . ^ * j^fiT/z^ , ^ ^ ^ 



^ o' 



p v 


’ / \‘*'\/ V'^''/ V % - T, 'y 

' v * y * °- > V s " ,o v * i*O - s **^ 



u» ^ 


A 





G V ^ - 

’ 4 A V * 

4 ^ ^ vw/i 

A <x .0* O '0.4 

•*•- .4 V „.*•« -v o’?' . 1 •-, *0 

< l> • r-C^V^Vv ^ f ^ i 

* 4 V ^ p>_ ^ 

























